Brain Injury Association of Queensland Inc v Powell [2004] ICQ 74

1122 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 April, 2004 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(2) – appeal against decision of industrial magistrate Brain Injury Association of Queensland Inc. AND Dru Elliott Powell (No. C95 of 2003) PRESIDENT HALL 18 March 2004 DECISION By application dated 9 May 2002, Dru Elliot Powell (“the Respondent”), a Public Officer within the meaning of the Justices Act 1886 (Qld) and an Inspector duly appointed under the Industrial Relations Act 1999 (“the Act”) claimed that: (a) the Brain Injury Association of Queensland Inc. (“the Appellant”) was an employer within the meaning of the Act; (b) the Appellant employed Annette Lynne Smith (“Ms Smith”) at Everton Park as a Disability Support Worker – Level 2 to perform work for which a fixed rate was prescribed by an industrial instrument, the Disability Workers Award – State (“the Award”) ; and (c) wages payable to Ms Smith for a fixed rate remained unpaid by the Appellant and the sums payable amounted to $23,976.88. The matter was heard before the Acting Industrial Magistrate at Brisbane and on 22 August 2003 (Claim no: M41/2002), the Acting Industrial Magistrate made a decision that the Appellant pay the Respondent, for and on behalf of Ms Smith, the sum of $23,962.36 as wages payable and unpaid by the Appellant to Ms Smith by virtue of the Award. Both before the Industrial Magistrate and on appeal to this Court the appellant relied upon that part of the “scope” clause of the Award, cl. 1.2 which provides: “This Award shall not cover ‘live in’ arrangements and shall not cover employees of the Crown.”. There is no definition of “‘live in’ arrangements”. The Acting Industrial Magistrate approached the matter on the basis that is not sufficient that the worker to whom the application related in fact “lived in” and that it was necessary for the worker to “live in” pursuant to an “arrangement” with the employer. I agree with that approach. Indeed, as I understand the arguments of counsel, the approach taken by the Acting Industrial Magistrate is not contentious. The appeal is conducted on the basis that “arrangement” might cover an agreement which was not contractually binding. “Arrangement” in the Trade Practices Act 1974 (C’wth) has been so treated, ACCC v. Amcor Printing Papers Group Limited (2000) 169 ALR 344 at 359 to 360 per Sackville J. “Arrangement” seems also to be used in that sense in s. 276 of the Industrial Relations Act 1999. I am content to deal with this appeal on the basis of that which has been argued, though I have some reservation about allowing exclusion of an engagement from a minimum rates award on the basis of an “arrangement” which is not enforceable law. The Acting Industrial Magistrate was at all times alive to cl. 4.6 of the Award which provides for payment of an allowance where an employee is required to sleep over at a work place for a period not exceeding 8 hours and entitles such an employee to the provision of board and lodging free of charge. (The section also provides for ordinary hours to be worked before and after the “sleep over”). Clause 4.6 is of some significance. In recognising that workers may live at a client’s premises for a significant period of time and be entitled to an allowance, the Award recognises that workers may live at a client’s premises for significant periods of time without being held to be engaged on a “live in” arrangement. Further, since employers are not required to pay for unsolicited additional services, the distinction between a worker who is “living in” and a worker who is “sleeping over” cannot be based on the presence or absence of agreement with the employer. The following passage, it seem to me, manifests the essence of the Acting Industrial Magistrate’s reasoning: “I find the primary facts to be as follows: 1. A client of the employer resided at the subject premises. The client had a brain injury and required 24 hour care. 2. A team of disability support workers provided that care for the client on a shift work or roster basis. 3. The employee commenced work for the employer on 17 September 2000 pursuant to a verbal agreement in substantially the same terms as the written employment agreement dated 3 October 2000. 4. The employer and employee entered into a written employment agreement dated 3 October 2000 purported to establish a position and arrangement outside the coverage of the Award and which related that it did so in express terms. 5. The employer and employee entered into a further written employment agreement dated 19 December 2000 in near identical terms but which included details of work for the period of Christmas and New Year 2000/2001. 6. The employment agreements and the verbal agreement referred to above required the employee to work five sleepovers per week with the employee generally having Wednesday and Thursday nights free and with her being rostered off for one weekend per month. A sleepover in the context of the verbal and written employment agreements paralleled those envisaged by the Award. 7. The written employment agreements provided that a bedroom and downstairs rumpus room would be available to the employee as her private space. 8. The written employment agreements made no provision for board and indicated that rent was free and that contributions would be required for phone and electricity. 9. The provision of the bedroom or other sleeping space was an essential prerequisite to the performance of the sleepover duty which was performed five nights per week and as such was an incident of employment that the employer was bound to provide. It was essentially an overhead to be borne by the employer. The employee was further entitled to the use and occupation of that bedroom for the remaining nights of the week. Under the written employment agreements the employee was entitled to the use of the rumpus room at all times although the use of that room was subsequently withdrawn by the client’s sister and /or conceded by the employee. 10. For a period of time the employee availed herself of the opportunity to lodge on the premises for part of her non duty hours although she maintained a home; firstly at her sister’s house and subsequently at the home of her defacto partner. I make this finding notwithstanding the employee nominated the client’s address as her home address on a number of work related documents. 11. Consequent upon my findings in 7 through 10 above, I find that the employee did not live in the premises. 12. Neither the employee’s verbal or written employment agreements required her to reside on or in the work premises nor did the agreements impose such obligations upon the employee from which one might infer a necessity for the employee to live in the premises. 13. The written agreements by their clear terms required the performance of five sleepovers per week and provided a right of occupation at those time (sic) when the employee was not on duty.”. -- 1 of 2 -- 2 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1123 I agree with the Acting Industrial Magistrate’s conclusion. The cases on “arrangement” in the context of the Trade Practices Act 1974 (C’wth) are not entirely consistent. On one view there is no need for reciprocity of commitment, compare TPC v. Email Limited (1980) 31 ALR 53 at page 56 per Lockhart J, whilst on another view induced expectation is sufficient, ACCC v. Amcor Printing Papers Group Limited (2000) 169 ALR 344 at 359 to 360 per Sackville J. Here there was neither a commitment by the worker to use the accommodation which the employer committed to provide nor expectation by the employer induced by the worker, that the worker would use the accommodation other than when sleeping on the premises. On the Acting Industrial Magistrate’s findings, the worker did use the accommodation for a period. The employer might not have been surprised that the worker did use the accommodation and might not have been surprised if she used the accommodation more than she did. But there is no basis for any finding that the employer had any expectations about the matter. There is nothing to suggest the Acting Industrial Magistrate proceeded on the view that an “arrangement” had to be legally binding. Indeed, there is much to suggest that he did not entertain that view. On that point His Worship said: “Although for the purposes of this decision I do not consider that I am required to make a finding as to the value of the right to occupation, I am satisfied that its value would be nominal only. The evidence is sufficient, in my view, to support a conclusion that quiet enjoyment would have been severely limited by such things as – the condition and behaviour of the client; the utilisation of the premises and particularly the common areas as a workplace; and the multifarious comings and goings of family and friends of the client and of the employee’s workmates.”. It seems to me that His Worship was contemplating that where pursuant to an “arrangement” which was not legally binding, in fact a worker was “living in” and in fact receiving benefits of considerable value, the scope of the Award might reasonably be read as denying the worker an entitlement to benefits under the Award as well. The Industrial Magistrate found that the worker was not the key carer. Given that there was evidence that another “unnamed” worker was the key carer, the finding was open to the Acting Industrial Magistrate. The relevance of the finding is (I think), that had this worker been found to be the key carer consideration would have to have been given to the argument that the worker was expected to “live in” for a period if fluctuation in the client’s condition made that desirable for his proper care. The appellant complains that the Acting Industrial Magistrate erred in finding that the use of the rumpus room had been withdrawn from the worker. His Worship did not make that finding. His Worship made the inconclusive finding that the use of the room “was subsequently withdrawn by the client’s sister and/or conceded by the employee”. The point about the finding is that the Acting Industrial Magistrate had in mind that the right to use of the rumpus room was a right of little value (in part) because it might readily be withdrawn or alternately (in part), because the worker’s conduct showed it was not worth defending. I do, however, accept the appellant’s complaint that the Acting Industrial Magistrate erred in finding that the arrangement between the appellant and the worker was nothing more than a device to take the worker’s engagement outside the Award. This is not a case of an employer entering into an agreement of no commercial or industrial significance other than avoidance of an Award. This is a case in which an employer who become involved in an arrangement enquired of Wageline whether the arrangement was within the Award, was informed that it was not within the Award and bona fide acted upon that advice. I dismiss the appeal. I reserve all questions of costs. Dated 18 March 2004. D.R. HALL, President. Released: 18 March 2004 Appearances: Mr J. Merrell, instructed by Hall Payne Lawyers, for the appellant. Mr C. Murdoch, instructed by Crown Law for the respondent. -- 2 of 2 --